Cranch, 159, were cited with approval. Cross v. U. S., 145 U. S. 574, 12 Sup. Ct. 842; Cross v. Burke, 146 U. S. 87, 13 Sup. Ct. 22.

In Farnsworth v. Territory of Montana, in which it was claimed that the validity of an authority exercised under the United States was drawn in question, it was held that the second section of the act did not extend to criminal cases, but that both sections applied to cases where there was a matter in dispute measurable by some sum or value in money. The view taken was that the second section contained an exception or limitation carved out of the first section, and that the words, that in the enumerated cases, "an appeal or writ of error may be brought without regard to the sum or value in dispute," clearly implied that in those cases, also, there must be a pecuniary matter in dispute, measurable by some sum or value, though not restricted in amount.

In U. S. v. Sanges, referring to Snow v. U. S., 118 U. S. 346, 6 Sup. Ct. 1059, we said: "The question whether the provision of the act of March 3, 1885, c. 355, § 2, authorizing a writ of error from this court to the supreme court of any territory in any case 'in which is drawn in question the validity of a treaty or statute of, or an authority exercised under, the United States,' extended to criminal cases, was then left open, but at October term, 1888, it was decided in the negative. Farnsworth v. Territory of Montana, 129 U. S. 104, 9 Sup. Ct. 253."

*And in Washington & G. R. Co. v. District of Columbia, 146 U. S. 227, 231, 13 Sup. Ct. 64, 66, it was said: "Both sections of the act of March 3, 1885, regulating appeals from the supreme court of the District of Columbia, apply to cases where there is a matter in dispute measurable by some sum or value in money. Farnsworth v. Territory of Montana, 129 U. S. 104, 112, 9 Sup. Ct. 253, 255; Cross v. Burke, 146 U. S. 82, 13 Sup. Ct. 22. By that act no appeal or writ of error can be allowed from any judgment or decree in any suit at law or in equity in the supreme court of the District of Columbia, unless the matter in dispute exclusive of costs shall exceed the sum of five thousand dollars, except that, where the case involves the validity of any patent or copyright, or the validity of a treaty or statute of, or an authority exercised under, the United States, is drawn in question, jurisdiction may be maintained irrespective of the amount of the sum or value in dispute."

Watts v. Territory of Washington, 91 U. S. 580, decided at October term, 1875, is cited as sustaining a different construction, but the point of decision there was that it nowhere appeared that the constitution or any statute or treaty of the United States was in any manner drawn in question, and the broad language of the opinion was plainly obiter, as pointed out in Farnsworth v. Territory of Montana.

9, 1893, establishing the court of appeals of the District of Columbia, is as follows:

"Sec. 8. That any final judgment or decree of the said court of appeals may be re-examined and affirmed, reversed, or modified by the supreme court of the United States, upon writ of error or appeal, in all causes in which the matter in dispute, exclusive of costs, shall exceed the sum of five thousand dollars, in the same manner and under the same regulations as heretofore provided for in cases of writs of error on judgment or appeals from decrees rendered in the supreme court of the District of Columbia; and also in cases, without regard to the sum or value of the matter in dispute, wherein is involved the validity of any patent or copy-right, or in which is drawn in question the validity of a treaty or statute of or an authority exercised under the United States."

We regard this section and the act of 1885 as the same in their meaning and legal effect. The act of 1885 prohibits appeals or writs of error unless the matter in dispute exceeds the sum of $5,000, and provides that the restriction shall not apply to certain enumerated cases, "but that in all such cases an appeal or writ of error shall be brought without regard to the sum or value in dispute."

The act of 1893 allows appeals or writs of error whenever the matter in dispute exceeds the sum of $5,000, and also in cases, "without regard to the sum or value of the matter in dispute," wherein the validity of any patent, or copyright, or of a treaty or statute of, or an authority exercised under, the United States, is drawn in question, being the same cases mentioned in the second section of the act of 1885. We think, as that section clearly applied to cases where there was a pecuniary matter in dispute, measurable by some sum or value, as has been repeatedly decided, the last clause of section 8 of the act of 1893 must receive the same construction. The meaning of both statutes is that, in the cases enumerated, the limitation on the amount is removed, but both alike refer to cases where there is a pecuniary matter in dispute, measurable by some sum or value, and they alike have no application to criminal cases. The suggestion that, because the punishment for conviction by the statute under which plaintiff in error was indicted, tried, and convicted, embraced a fine, there was, therefore, a sum of money in dispute, was disposed of by Chief Justice Marshall in U. S. v. More, supra. We repeat the language of the chief justice: "In criminal cases, the question is of the guilt or innocence of the accused. And, although he may be fined upwards of 100 dollars, yet that is, in the eye of the law, a punishment for the offense committed, and not the particular object of the suit."

It is contended that the words "and also," as used in the section under consideration, are words "of legal art,” of “almost immemorially precise and technical meaning," and import

but a transition from what had been previously declared to a new and independent subject intended to stand by itself.

We do not care to go into the struggle between the courts of king's bench and common pleas on the question of the jurisdiction of the former over civil actions, which led to the curious device of the ac etiam, more particularly to avoid the effect of 13 Car. II. St. 2, c. 2. It was invented in order to couple, with a cause of action over which the court of king's bench had jurisdiction, another cause of action, over which, without being joined with the first, the court would not have had jurisdiction. 2 Sell. Prac. Append. 625, 630; Burges, Insolv. 135, 149.

We are unable to conclude that congress, which might easily have conferred jurisdiction in plain and explicit language, resorted to this ancient contrivance to effect it.

The argument is pressed that, as, by section 5 of the judiciary act of 1891, cases of conviction of capital or otherwise infamous crimes, cases involving the construction or application of the constitution of the United States, or cases in which the constitutionality of any law of the United States is drawn in question, can be brought to this court directly from the district and circuit courts of the United States, therefore this section should be construed as giving the same right of review in the District of Columbia.

But we think the section too plain to admit of this. No mention of the courts of the District of Columbia is made in the act of March 3, 1891, and there is nothing in the eighth section to justify its expansion so as to embrace the provisions of that act. In re Heath, 144 U. S. 92, 96, 12 Sup. Ct. 615, 616.

The writ of error was granted by the court of appeals in this case with reluctance, as appears from the opinion of Chief Justice Alvey, in passing upon the application therefor, given in the record, and out of deference to the supposed intimation in Re Chapman, 156 U. S. 211, 15 Sup. Ct. 331, and in Re Belt, 159 U. S. 95, 15 Sup. Ct. 987, that it might lie. It is quite possible that the language used in the opinions in those cases was somewhat too cautiously worded, but it was with the purpose, as the question was not raised for decision, of avoiding, rather than expressing, any views upon it.

We are of opinion that the writ of error cannot be maintained. Writ of error dismissed.

(164 U. S. 452)

PERRINE et al. v. SLACK.
(November 30, 1896.)
No. 549.

SUPREME COURT-APPELLATE JURISDICTION-JURIS-
DICTIONAL AMOUNT.

The supreme court of the United States has no jurisdiction to review the judgment of the court of appeals of the District of Columbia, in a controversy between a mother and a testamentary guardian involving the custody of infant children, since the matter in dispute can

not be reduced to any pecuniary standard of value, so as to determine whether the jurisdictional amount is involved.

In Error to the Court of Appeals of the District of Columbia.

J. M. Wilson, Calderon Carlisle, and Wm. G. Johnson, for plaintiffs in error. A. S. Worthington and George E. Hamilton, for defendant in error.

"Mr. Chief Justice FULLER delivered the opinion of the court.

This proceeding involves a controversy as to the custody of two children of tender years. Mrs. Perrine is the sister of the deceased father of the children, and her co-plaintiff in error is her husband. She had the custody of the children under their father's will. Mrs. Slack, defendant in error, is their mother, and filed a petition for a writ of habeas corpus in the supreme court of the District of Columbia to obtain custody of them. The writ was issued, and return made by plaintiffs in error, which was demurred to, the demurrer overruled, and the writ discharged. From this judgment Mrs. Slack appealed to the court of appeals of the District of Columbia, which reversed the judgment, and remanded the case, with directions to sustain the demurrer to the return, and to proceed with the case in conformity with the opinion of the court. Thereupon a writ of error, to operate as a supersedeas upon the filing of a bond in the penal sum of $10,000 was allowed, and the bond required was filed and approved. After this, an order was entered by the court of appeals (the chief justice dissenting, as he had from the judgment) directing the judge of the supreme court of the District, who had entered the order discharging the writ, to place the children in the custody of their mother, pending the prosecution of the writ of error, upon her giving satisfactory security. This. order was entered and complied with, and the children were taken from their*aunt, their testamentary guardian, and placed in their mother's custody.

The situation being thus, application was made to this court for the issue of a writ of supersedeas, or other proper writ, to the court of appeals, or to the judge of the supreme court of the District who had entered the order, as directed by that court, to supersede, annul, and set aside the proceedings taken after the writ of error to this court had been allowed and made a supersedeas. That application having been submitted, we found it necessary to request counsel to file briefs on the question of the jurisdiction of this court to entertain the writ, and this has been done. We are of opinion that the writ of error will not lie. The controversy is between the mother and the testamentary guardian of the infant children, each claiming the right to their custody and care, and the matter in dispute is of such a nature as to be incapable of being reduced to any pecuniary standard of value. Barry v. Mercein, 5 How. 103.

For the reasons given, and on the authorities cited in Chapman v. U. S., 17 Sup. Ct. 76, we hold that this court has no jurisdiction to review the judgments of the court of appeals under such circumstances, and, as the writ of error must be dismissed, we ought not to consider the question whether the action of the court of appeals, after the writ of error had been granted and the judgment of that court superseded, was improvident or not.

Writ of error dismissed.

1. Act Ga. Dec. 14, 1835, amending the charter of the Central Railroad & Banking Company, provides (section 18) that the "railroad and the appurtenances of the same" shall not be taxed higher than one-half of 1 per cent. upon its annual net income, and that "no municIpal or other corporation shall have power to tax the stock of said company, but may tax any property, real or personal," of the company, in the ratio of taxation of like property. Held, that the power of cities and counties through which the road passed to tax its property extended to all property of the road within their jurisdiction, and was not limited to property not included in the terms "railroad and appurtenances."

2. A provision, in the charter of a railroad company, that the railroad and its appur tenances shall not be taxed higher than a fixed rate, followed by provisions regulating the taxation of the property of the company by munic ipal corporations, amounts to a limitation on state taxation.

of

3. A provision, in the charter of a railroad company, denying to municipal corporations the power to tax its "stock," but giving them pow, er to tax "any property, real or personal," the company, is, in effect, a denial of power to tax the shares of stock in the hands of stockholders.

4. The power of a county to tax the property of a railroad company, under a provision in the charter of the company giving the power of taxation to municipal corporations, is not affected by the fact that the charter was granted before the county was organized as a municipal corporation.

Appeal from the Circuit Court of the United States for the Southern District of Georgia.

*This was an intervening petition filed by William A. Wright, comptroller general of the state of Georgia, praying that the receivers of the Central Railroad & Banking Company, appointed in a suit for the foreclosure of a mortgage to the Farmers' Loan & Trust Company, be required to pay him certain taxes said to be due by the corporation, for the year 1891, upon its property in different counties and cities upon the line of its road in the state of Georgia, which taxes were claimed to be a lien upon the property of the road.

The taxes were assessed in pursuance of

certain acts of the general assembly, passed in 1889 and 1890, authorizing counties and cit les to tax railroad property. The taxes were levied upon the railroad and appurtenances of that portion of the Central Railroad between Savannah and Macon, and included no other property of the company. The defendants claim the taxes to be invalid, upon the ground that the railroad and its appurtenances over that part of the line from Savannah to Macon were subject only to a taxation of onehalf of 1 per cent. upon the net annual income of the road, and that the acts of 1889 and 1890, in so far as they authorized the taxation of its property by counties and other municipalities, impaired the obligation of the original contract of the state contained in its charter, and were, therefore, void.

The circuit court was of opinion that the taxes were properly levied, and made a decree for their payment by the receivers, and from that decree the corporation and its receivers appealed to this court.

A. R. Lawton, for appellants. J. M. Terrell, for appellee.

The defendant corporation was chartered in 1833 (Laws Ga. 1833, p. 246) under the name of the Central Railroad & Canal Company, "for the purpose of opening a canal or railroad communication from the city of SavanThe sev nah to the interior of the state." enth section declared that "the said canal or railway, and the appurtenances of the same, shall not be subjected to be taxed higher than an half per cent. upon its annual net income." On December 14, 1835, the general assembly passed an amendatory act (Laws 1835, p. 217), under which the road was constructed, changing the name to the Central Railroad & Banking Company, and giving it certain banking powers and privileges. The eighteenth section of this act provided that "the said railroad, and the appurtenances of the same shall not be subjected to be taxed higher than one-half of one per centum upon its annual net income, and no municipal or other corporation shall have power to tax the stock of said company, but may tax any property, real or personal, of the said company, within the jurisdiction of said corporation in the ratio of taxation of like property."

No other act affecting the question at issue was passed until 1889, when the general assembly provided a general system of taxation of railroad property in each of the coun ties of the state through which the railroads ran, and required the various companies to make annual returns to the comptroller gen

eral, under the oath of the president or chief executive officer, and enacted that they should be subjected to taxation in every county through which their roads might pass.

Other sections of the act provided how the amounts should be assessed and paid, and the manner of issuing execution in the event they were not paid.

By another act, approved December 24, 1890, railroad companies were subjected to taxation upon their property located in the different towns and cities of the state.

By reason of the fact that all of the property and effects of the Central Railroad & Banking Company were in the hands of receivers, appointed by the circuit court of the United States, under certain bills filed to foreclose a mortgage to the Farmers' Loan & Trust Company, the comptroller general was unable to collect such taxes by the ordinary process of levy and sale, and therefore filed his petition against such receivers, praying that they might be required to pay him the taxes. Under the acts of 1889 and 1890 the corporation made the returns required, and paid such taxes as were assessed upon those parts of its property which were admitted to be subject to taxation, but contended that, as to its original line between Savannah and Macon, it could not be taxed, either by the state or by its municipalities, at a greater rate than one-half of 1 per cent. upon its net annual income.

In section 18 of the act of 1835, above cited, there is an express prohibition against the municipal taxation of the "stock" of the company, and an express permission to tax any "property" of the company within the jurisdiction of the corporation. The real question is whether these two clauses can be reconciled, and each given its proper effect. The position of the railway company, in this connection, is that the railroad and its appurtenances may not be taxed, either by the state or by municipalities or counties, at a greater rate than one-half of 1 per cent. upon its net annual income; that, this amount having been paid, the power to tax the railroad and its appurtenances has been exhausted; that the permission given the municipalities to tax the property of the company applies only to such property as is not included in the term "railroad and appurtenances," and must have been intended to include such property as the corporation, by virtue of its banking powers, could purchase or might receive in satisfaction of debts. It is further contended that the prohibition of the taxation of the stock applies equally to the property represented by the stock.

In support of this contention we are cited to certain decisions holding that a tax upon the "property" of a railway company is within the prohibition of a tax upon the "stock" of the company; in other words, that a tax upon the property is a tax upon the stock. In examining these cases, however, it will be found that the words "stock," or v.17s.c.-6

"capital stock," were used in the sense of the "capital," the "plant," or the "property" of the company, and not, as in this statute, in the sense of "stock," or "shares of stock," as distinguished from the property of the com pany. Thus, in Rome R. Co. v. Mayor, etc., of Rome, 14 Ga. 275, there was an attempt made to levy a tax upon the property of the Rome Railroad Company within the corporate limits of the city of Rome. There was a provision in the charter that the "stock" of the company should "not be liable to any tax, duty or imposition whatever, unless such, and no more, as is now in the banks of this state." The tax was held to be invalid. As it appeared in this case that a certain part of the stock of the company, which was on deposit in the bank, was expressly permitted to be taxed, it was apparent that the word "stock" was used in the sense of "property," and that the money of the company on deposit in the banks was intended to be distinguished from its other property.

So, also, in State v. Hood, 15 Rich. Law, 177, a charter of a railroad company exempting the "stock" of a railroad company from taxation was held also to exempt its "gross income," as the income was only an accessory of the stock, which was an aggregate of the property and effects of the corporation.

Indeed, the general tenor of the authorities is to the effect that, where there is a general exemption of the stock or capital stock of a corporation, without other explanatory words, the exemption applies equally to the property of the corporation represented by its shares of stock. Gordon v. Mayor, etc., 5 Gill, 231; Mayor, etc., of Baltimore v. Baltimore & O. R. Co., 6 Gill, 288; State v. Cumberland & P. R. Co., 40 Md. 22; President, etc., of the Town of Connersville v. Bank of Indiana, 16 Ind. 105; Town of New Haven v. City Bank of New Haven, 31 Conn. 106; Railroad Co. V. Shacklett, 30 Mo. 550. And, in Central Railroad & Banking Co. v. Georgia, 92 U. S. 665, it was held by this court that, in view of the eighteenth section of the act of 1835, the state itself could not tax the property of the Central Railroad & Banking Company between Savannah and Macon beyond one-half* of 1 per cent. upon its annual net income, notwithstanding that, in 1872, it had become consolidated with the Macon & Western Railroad Company, whose charter did not possess such immunity from taxation.

The only embarrassment in the case arises from a decision of the supreme court of Georgia in the case of Ordinary of Bibb Co. v. Central Railroad & Banking Co., 40 Ga. 646. It appeared in this case that the ordinary of Bibb county endeavored to levy a tax upon the property of railroad companies having their termini in Macon, and it was submitted to the judge of the Macon circuit to decide whether, under its charter, the company could be taxed for county purposes, or was liable for any other tax than one-half of